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May 30, 2014 by admin

OJ / PFS made by one defendant, but requiring execution of a release naming three defendants, was not ambiguous

39 Fla. L. Weekly D1075a


Attorney’s fees — Proposal for settlement — Error to deny
award of attorney’s fees to defendant on ground that proposals for settlement
were ambiguous and unenforceable — Proposals were not rendered ambiguous by
fact that body of proposals stated that one defendant would be released if
releases were signed, whereas releases attached to proposals stated that all
three defendants would be released if they agreed to proposal

MARJORIE MATHIS AND WILLIAM HERSHEL MATHIS, Appellants/Cross-Appellees, v.
JOSEPH D. COOK, ETC., ET AL., Appellees/Cross-Appellants. 5th District. Case No.
5D13-457. Opinion filed May 23, 2014. Appeal from the Circuit Court for Marion
County, T. Michael Johnson, Judge. Counsel: Shanta Matthews, of Daniel L.
Hightower, P.A., Ocala, for Appellants/Cross-Appellees. Derek J. Angell, of
O’Connor & O’Connor, LLC, Winter Park, for Appellees/Cross-Appellants, John
Cook and Joseph D. Cook. Frank A. Miller and Susanne M. Suiter, of Caglianone,
Miller & Lao, P.A., Brooksville, for Appellee/Cross-Appellant, Quality
Cleaning, Inc.
(BERGER, J.) Marjorie Mathis and her husband, William Mathis, plaintiffs
below, sued Joseph D. Cook, John Cook and Quality Cleaning, Inc., in negligence
for injuries Marjorie sustained when she slipped and fell on chemicals used to
clean the floor at the Walgreens where she worked.1 After the jury returned verdicts in favor of the
defendants, concluding the Cooks were not negligent, the trial court entered
final judgment in favor of the Cooks. John Cook then moved to tax his attorney’s
fees on the basis of two unaccepted proposals for settlement. The trial court
denied his motion.
This case involves the Mathises’ appeal of the final judgment and John Cook’s
cross-appeal of the order denying attorney’s fees. Of the numerous issues raised
by the parties, only the cross-appeal merits discussion. In it, John Cook argues
that the trial court erred when it determined that the proposals for settlement
he served on the Mathises were ambiguous and unenforceable. We agree and
reverse.
John Cook served separate proposals for settlement on both Marjorie and
William Mathis. Each proposal specifically stated that it was being made on
behalf of John Cook, and that the only known condition associated with
acceptance of the proposal was the execution of an attached release, which
released not only John Cook, but also Joseph Cook and Quality Cleaning. The
following, relevant language was included in Marjorie’s release:

The undersigned, MARJORIE MATHIS, hereinafter the Releasor, for and
in consideration of the sum of TWENTY ONE THOUSAND AND NO/100 DOLLARS ($21,000),
does, for herself and her heirs, executors, administrators and assigns, hereby
completely and fully release and discharge, JOHN COOK, his heirs, agents,
servants, representatives, administrators and assigns, JOSEPH COOK, his heirs,
agents, servants, representatives, administrators and assigns, and QUALITY
CLEANING, INC., and its employees, agents, servants, representatives,
administrators, successors and assigns, hereinafter the Releasees, of and from
any obligation, liability or responsibility arising out of the claim and/or
action set forth IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR
MARION COUNTY, FLORIDA, CASE NO. 09-5209-CA-B, which arose out of an incident
that occurred on or about May 20, 2007.

It is understood and agreed that this settlement is in full
compromise of a disputed claim, and that neither this release nor the payment
pursuant to this release shall be construed as an admission of
liability.

. . . .

Following receipt of settlement funds and the execution of this
release and settlement agreement, counsel for the Plaintiff has, or will, in the
immediate future, deliver to counsel for the Defendants an executed dismissal
dropping the Defendant as a party to the pending action with prejudice. The
Plaintiff has authorized Plaintiff’s counsel to execute the dismissal on their
behalf and hereby authorizes counsel for the Defendants to file the dismissal
with the court and enter it as a matter of record. The court shall retain
jurisdiction as to any remaining parties and for enforcing the terms of this
settlement.

. . . .

The parties recognize and acknowledge that the terms of this release
are not designed nor intended to resolve all pending claims. The terms of this
release are limited to resolve and release all pending claims which exist as to
JOHN COOK, his heirs, agents, servants, representatives, administrators and
assigns, JOSEPH COOK, his heirs, agents, servants, representatives,
administrators and assigns, and QUALITY CLEANING, INC., and its employees,
agents, servants, representatives, administrators, successors and assigns. Any
and all claims which have been made, or which may exist, as to any other person,
corporation, partnership or other legal entity shall not be compromised or
extinguished by the terms of this release.2

The release directed to William was the same in all respects, except for his
name and the amount of money he was supposed to receive to settle the case.
John Cook argues that the proposals for settlement were not ambiguous because
they specifically referenced and incorporated the attached releases, which
required, as a condition of acceptance, that the Mathises release the two
codefendants. The Mathises, on the other hand, contend that the proposals were
ambiguous because the language in the body of the proposal stated that John Cook
would be released if the releases were signed, whereas the releases attached to
the proposals stated that all three Defendants would be released if they agreed
to the proposal. The Mathises assert that this created an ambiguity and
precluded entry of an award of fees in John Cook’s favor. We disagree.
An order granting or denying fees based on a proposal for settlement is
reviewed de novo. Sparklin v. S. Indus. Assocs., Inc., 960 So. 2d 895,
897 (Fla. 5th DCA 2007).
“Section 768.79, Florida Statutes . . . provides a sanction against a party
who unreasonably rejects a settlement offer.” Willis Shaw Exp., Inc. v.
Hilyer Sod, Inc.
, 849 So. 2d 276, 278 (Fla. 2003). That provision provides,
in relevant part:

(1) In any civil action for damages filed in the courts of this
state, if a defendant files an offer of judgment which is not accepted by the
plaintiff within 30 days, the defendant shall be entitled to recover reasonable
costs and attorney’s fees incurred by her or him or on the defendant’s behalf
pursuant to a policy of liability insurance or other contract from the date of
filing of the offer if the judgment is one of no liability or the judgment
obtained by the plaintiff is at least 25 percent less than such offer, and the
court shall set off such costs and attorney’s fees against the award. . .
.

§ 768.79(1), Fla. Stat. (2012). Florida Rule of Civil Procedure 1.442
implements section 768.79 and requires that a proposal for settlement:

(A) name the party or parties making the proposal and the party or
parties to whom the proposal is being made;

(B) state that the proposal resolves all damages that would
otherwise be awarded in a final judgment in the action in which the proposal is
served, subject to subdivision (F);

(C) state with particularity any relevant conditions;

(D) state the total amount of the proposal and state with
particularity all nonmonetary terms of the proposal;

(E) state with particularity the amount proposed to settle a claim
for punitive damages, if any;

(F) state whether the proposal includes attorneys’ fees and whether
attorneys’ fees are part of the legal claim; and

(G) include a certificate of service in the form required by rule
1.080.

Fla. R. Civ. P. 1.442(c)(2).
In interpreting rule 1.442, the Florida Supreme Court has recognized that it
may be impossible to eliminate all ambiguity from proposals for settlement.
State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla.
2006). Rather than eliminating all ambiguity, the rule only requires “that the
settlement proposal be sufficiently clear and definite to allow the offeree to
make an informed decision without needing clarification.” Id. However, if
“ambiguity within the proposal could reasonably affect the offeree’s decision,
the proposal will not satisfy the particularity requirement.” Id.

We have previously held that proposals for settlement made by one plaintiff
on separate defendants, conditioned on the dismissal of both defendants, were
not ambiguous. See Health First, Inc. v. Cataldo, 92 So. 3d 859,
871 (Fla. 5th DCA 2012) (where interests of the defendants were coextensive,
offer of judgment not invalidated because of plaintiff’s promise to release
remaining defendants as a nonmonetary term of the settlement); see also
Andrews v. Frey, 66 So. 3d 376, 378-79 (Fla. 5th DCA 2011) (where
defendants’ liability is coextensive, one defendant’s proposal to settle
plaintiff’s negligence and vicarious liability action against two defendants was
valid for purposes of defendant’s entitlement to attorney’s fees and costs under
the offer of judgment statute and rule, even though proposal conditioned
acceptance on release of claims against defendant who was not an offeror under
the proposal). But see Duplantis v. Brock Specialty Servs., Ltd.,
85 So. 3d 1206, 1209 (Fla. 5th DCA 2012)(where vicarious liability is contested,
plaintiff is entitled to separate offers from each defendant so that plaintiff
may independently and intelligently assess and evaluate each offer).3
Here, John Cook’s proposals were sufficiently clear to allow the Mathises to
make an informed decision without needing additional clarification. The
proposals clearly stated that John Cook was making the offer and, as a condition
of settlement, William and Marjorie were required to release the other
defendants. The releases also clearly identified the rights that William and
Marjorie would be giving up if they agreed to the proposal for settlement. The
fact that the proposals only stated that they were made on behalf of John, but
the releases indicated that all defendants would be released if the Mathises
agreed to the proposals, did not create an ambiguity or transform the separate
offers into undifferentiated joint offers. See Cataldo, 92 So. 3d
at 871. Accordingly, we conclude that John Cook’s proposals for settlement
complied with section 768.79(1), Florida Statutes, and Florida Rule of Civil
Procedure 1.442, and are enforceable. We therefore reverse the order of the
trial court denying John Cook’s motion for attorney’s fees and remand for
further proceedings consistent with this opinion. In all other respects, we
affirm.
AFFIRMED in part; REVERSED in part; and REMANDED. (LAWSON and COHEN, JJ.,
concur.)
__________________
1Walgreens contracted with Quality
Cleaning, Inc. for the floor cleaning, and Quality contracted with Joseph and
John Cook to carry out the cleaning job. Prior to trial, the parties stipulated
and agreed that Quality was legally responsible for any negligence on the part
of the Cooks that harmed Marjorie Mathis.
2There are typographical errors in the
release; however, these errors do not create an ambiguity. Rather, it is
apparent from reading the release that in order to settle the matter with John,
Marjorie and William would each be required to release John, Joseph, and Quality
if they chose to accept John’s proposal.
3During oral argument, counsel for the
Mathises conceded that Duplantis did not apply. We agree with this
assessment. Although the offers in both cases were made at a time when vicarious
liability was contested, here the offer was made by the active tortfeasor,
whereas in Duplantis, the offer was made by the vicariously liable
tortfeasor. 85 So. 3d at 1207. This distinction is significant. When an offer is
made by an active tortfeasor conditioned on the release of the vicariously
liable tortfeasor, the plaintiff is not put in a position of foregoing a valid
but uncompensated claim against the vicariously liable tortfeasor because the
claims are coextensive. This is not the case when the offer is made by the
vicariously liable tortfeasor, conditioned on the release of the active
tortfeasor, when vicarious liability is contested.

* * *

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